Eagle Transportation Permits for American Indians and Public Institutions

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 22

RIN 1018 AB81

Eagle Transportation Permits for American Indians and Public

Institutions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service proposes to revise the general

eagle permit restrictions applicable to American Indians and public

institutions. The Service proposes to issue permits of limited duration

and conditions, for the transportation into and out of the United

States of eagle parts, nests or eggs or articles containing such parts,

nests or eggs of the bald eagle (Haliaeetus leucocephalus) or the

golden eagle (Aquila chrysaetos) that are lawfully possessed by

American Indians and public institutions.

The proposed regulation will provide for eagle permits to be issued

only for transportation into and out of the United States when the

eagle parts have religious significance or value, or are being

transported by a public institution for scientific or exhibition

purposes. The Service makes this proposal in order to address the

concerns which have been expressed by American Indians and public

institutions who have sought the Service's permission for the

international travel of lawfully possessed eagle parts or other

articles containing eagle parts.

DATES: Comments must be submitted on or before August 15, 1994.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Director, U.S. Fish and Wildlife Service, P.O. Box 3247,

Arlington, Virginia 22203-3247. Comments and materials may be hand-

delivered to the U.S. Fish and Wildlife Service, Division of Law

Enforcement, 4401 N. Fairfax Drive, room 500, Arlington, Virginia,

between the hours of 8 a.m. and 4 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT:Frank Shoemaker, Special Agent in

Charge, Branch of Investigations, Division of Law Enforcement, Fish and

Wildlife Service, U.S. Department of Interior, Washington, DC 20240,

Telephone Number (703) 358-1949.

SUPPLEMENTARY INFORMATION:

Background

The golden eagle and most notably the bald eagle are proud symbols

of our nation's natural beauty, our democratic form of government and

our national heritage. The bald eagle was selected by the Continental

Congress in 1782 as our national symbol and was given special

protection by Congress in the Eagle Act of June 8, 1940. The Act as

originally enacted provides that the Secretary of Interior may permit

the taking and possession of bald eagle specimens for the scientific or

exhibition purposes of public museums, scientific societies, and

zoological parks.

The Eagle Act was amended by Congress on October 24, 1962 (16

U.S.C. 668a) to include the golden eagle within its provisions and to

permit the taking, possession, and transportation of eagle specimens

for the religious purposes of Indian tribes.

Summary of Comments and Information Received

On Thursday, November 14, 1991, the Service published in the

Federal Register a Notice of Intent to Review 50 CFR part 22 (56 FR

57872). In this notice the Service requested that all interested

parties submit written comments. In response to this request the

Service received six comments pertaining to 50 CFR part 22. The Service

has carefully considered all comments received in response to the

November 14, 1991, Federal Register notice in proposing these changes

to part 22.

In making this proposal the Service has carefully considered the

recommendations made by commentaries in response to the Notice of

Intent to Review published on Thursday November 14, 1991, Federal

Register (56 FR 57872). The Service invites comments on this proposed

rule and on all comments pertaining to Part 22, summarized herein,

submitted in response to the Notice of Intent to Review.

Comments Pertaining to Section 22.21. Permits for Scientific or

Exhibition Purposes

Several comments were received on the proposed revision of Section

22.21. One recommendation was that Sec. 22.21, Permits for Scientific

or Exhibition Purposes, limiting possession of bald or golden eagles to

museums, public scientific societies and zoological parks, should be

amended to allow eagles to be placed in private institutions. The

commenter noted that there has been an increased number of birds that

are for various reasons non-releasable and hard to place into public

institutions. The Service does not anticipate changing the current

regulations to allow for the placement of eagles with private

institutions. The Service has been successful in placing non-releasable

birds in public institutions in the past and expects the availability

of these types of placements to continue. Public institutions have been

the placement of preference for such birds because they usually provide

a greater opportunity for the citizens of the United States to enjoy

the rare beauty of these birds.

Comments Pertaining to Section 22.22. Permits for Indian Religious

Purposes

One commenter requested that the Service include language within

the regulations that would make it easier for tribal members to obtain

eagle feathers. The Service has striven to make its current procedures

as fair and equitable as possible in light of the limited supply and

the increasing demand for eagle feathers. The Service is working with

the tribal entities to make substantive changes in its policies.

Another recommendation was that Service procedures be revised to

allow American Indians who find dead eagles to have the same eagle they

found returned, because of what was termed, the found eagle's

``spiritual and cultural'' significance to individual American Indians.

The Service recognizes and has carefully considered the concern raised.

The Service is presently reviewing its policies and procedures to

provide for this special need and allow American Indians to pick up and

keep eagles found dead on tribal lands. The Service is also making

administrative changes to allocate more resources to the National Eagle

Repository and to simplify the entire eagle permit process for the

religious use of American Indians. The Service will continue to work

with tribal entities to develop recommendations to enhance these

initial efforts.

Another recommendation was to revise the applicant certification

requirement and permit issuance criteria set out in Sec. 22.22. The

Service has traditionally followed, as a matter of policy, guidelines

established by the Bureau of Indian Affairs (Bureau) in reviewing such

matters. These same guidelines are used by the Bureau to determine the

status of an individual seeking federal assistance. The Bureau's

certification simply indicates that an applicant is a member of a

federally-recognized tribe in good standing. The establishment of an

additional set of guidelines for the sole purpose of the allocation of

eagles feathers would be redundant and inconsistent with the equitable

standards set out by the Bureau. The Service, therefore, will continue

to defer to the Bureau's criteria and anticipates no changes in the

current certification requirements.

A recommendation was also made to include language allowing tribal

members who lack proper paperwork to prove that they have permission

from the Service to possess eagle feathers. Under current regulations,

bald eagle parts, nests, or eggs lawfully acquired prior to June 8,

1940, and golden eagles parts, nests or eggs lawfully acquired prior to

October 24, 1962, may be possessed, or transported within the United

States without a Federal permit. Except for the above stated

exceptions, a valid permit for American Indian religious purposes is

required. No change in these provisions are anticipated at this time.

Comments Pertaining to Section 22.23. Permits to Take Depredating

Eagles

Another recommendation relating to part 22 was the suggestion that

the Service should include within the current issuance criteria

required for Permits to take depredating eagles, in Sec. 22.23(a), an

additional permit criteria requiring the applicant to provide

documentation of other methods that were attempted to reduce

depredations. The Service anticipates no changes in the permit criteria

for permits to take depredating eagles at this time. The Service

considers the factual inquiry already required under existing

application criteria to be sufficient to assure the continued

protection of wild eagle populations.

Comments were also received on the subject of the use of eagles in

falconry. Specific comments were that the Service should relax and

simplify the requirements necessary for obtaining permits for golden

eagles used in falconry for falconers who want to fly eagles. The

Service considers current permit requirements as generally necessary

and proper in order to assure the safety and welfare of both the eagle

and the falconer. In the Service's considered view, any relaxation of

these standards to allow other than master class falconers to possess

golden eagles for falconry could be detrimental to the bird and the

handler. Therefore, no changes to this effect are anticipated within

the regulation at this time.

Another commenter recommended that eagles taken under permits,

pursuant to Sec. 22.23(b)(3), Permits to take depredating eagles,

should be made available for scientific purposes, including deposition

in a museum. In the Service's experience, the demand for eagles and

eagle parts by American Indians is greater than the supply. The

Service, therefore, has an obligation to fulfill the religious needs of

the American Indian before alternative depositions are considered.

Therefore, the Service does not anticipate making any changes at this

time.

Need for Proposed Rulemaking

The Fish and Wildlife Service proposes to amend the regulations

restricting the issuance of eagle permits, in order to respond to the

particular needs of American Indians and public institutions. In order

to assist the legitimate needs of American Indians and public

institutions for bald or golden eagle feathers and other parts, the

Service currently provides for the issuance of permits to American

Indians and public institutions to possess bald and golden eagle

feathers or parts. Under the permit system the possession and

transportation within the United States of eagle feathers and parts is

legal, but they may not be imported, exported, purchased, sold, traded,

bartered or offered for purchase, sale, trade or barter. The Service

has established an eagle repository for eagle parts at the Clark R.

Bavin National Fish and Wildlife Forensic Laboratory in Ashland,

Oregon, where American Indians through the permit process may lawfully

obtain feathers and other parts, nests or eggs of eagles.

American Indians and representatives of public institutions in the

past have sought the Service's permission to travel internationally

with their lawfully possessed bald or golden eagle feathers, parts,

eggs, nests or other articles which may contain eagle parts. A change

in the permit requirements was necessitated because the regulations, as

they currently exist, do not authorize the transportation into or out

of the United States of religiously significant bald or golden eagle

parts or articles containing such parts, nests or eggs by American

Indians, or the transportation into or out of the United States or bald

or golden eagle parts or articles containing such parts, nests or eggs

for scientific or exhibition purposes. The Service, therefore, proposes

to make accommodations for the religious needs of the American Indian

community and for public institutions by making changes in the eagle

permit regulations that generally prohibit all imports and exports of

eagle parts, nests or eggs and do not differentiate between

transportation within and transportation outside the United States.

The Service proposes to amend the regulations to provide for the

issuance of eagle permits when the parts are lawfully possessed by

American Indians and public institutions for the transportation into

and out of the United States. The intent or the end result of the

transportation into and out of the United States by American Indians

and public institutions shall not be, under any circumstance, for the

purchase, sale, barter or trade of bald eagle or golden eagle parts,

nests or eggs.

The Service proposes to provide that eagle permits of limited

duration may be issued under substantially the same general

requirements and conditions applicable to the domestic possession and

transportation of such articles by American Indians and public

institutions. The Service hopes that this revision of the regulation

will facilitate the international travel of American Indians and

representatives of public institutions. The Service believes that it

can serve its mandate to protect and preserve the viability of bald

eagle or golden eagle populations and at the same time provided for a

reasonable and proper balance of regulations which address the

legitimate needs of the American Indian community and public

institutions. In addition to the above changes, several references

within the Sections have been updated or more clearly stated.

Required Determinations

Note. This rule was not subject to Office of Management and

Budget (OMB) review under Executive Order 12866. The Department of

the Interior (Department) certifies that this proposed rule will not

have a significant effect on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This

action is not expected to have significant taking implications, as

per Executive Order 12630. The only effect of this rule will be to

make it easier for American Indians and public institutions to

travel or move internationally with lawfully possessed articles

containing bald or golden eagle parts. This proposed rule does not

contain any additional information collection requirements, beyond

those approved under OMB approval Number 1018-0022, that would

require the approval of the Office of Management and Budget under

the Paperwork Reduction Act, (44 U.S.C. 3501 et seq.). This action

does not contain any federalism impacts as described in Executive

Order 12612. These proposed changes in the regulations in Part 22

are regulatory and enforcement actions which are covered by a

categorical exclusion from National Environmental Policy Act

procedures under 516 Departmental Manual. An Environmental Action

Memorandum is on file at the U.S. Fish and Wildlife Service Office

in Arlington, Virginia. The determination has been made pursuant to

Section 7 of the Endangered Species Act that the proposed revision

to Part 22 will not effect a federally listed species.

Civil Justice Reform--Executive Order 12778

In revising these regulations the Service has made every reasonable

effort in formulating these proposals to ensure that these regulations:

(A) Have no preemptive effects upon other regulations not being

revised herein.

(B) The major effects upon Federal regulations is to provide eagle

permits for the transportation into and out of the United States with

lawfully obtained bald and golden eagle parts, nests, and eggs, for

American Indian tribe religious use and public institutions for

scientific and exhibition purposes.

(C) The standards proposed in this proposed revision are intended

to articulate a precise and understandable criterion of what

transportation into and out of the United States is being regulated and

how the affected interests may conform their activities and comply with

applicable eagle permit regulations. This standard will promote

regulatory simplification and burden reduction upon affected interests

by providing notice:

(1) That members of American Indian tribes and public institutions

may now take their lawfully obtained eagle parts, nests, eggs, or items

containing such with them when they travel outside the territory of the

United States;

(2) That, a Service eagle permit is required in order to transport

eagle parts, nests, or eggs into or out of the United States;

(3) That the Service will issue such permits under specified permit

``Issuance criteria'' stated in 50 CFR 22.22(c);

(4) That permits for the transportation of eagle parts, nests, or

eggs into and out of the United States will be of certain and limited

duration; and

(5) That the import, export purchase, sale, barter, or trade, of

eagle parts, nests, or eggs shall remain prohibited by regulation.

(D) These proposed changes to the regulations in title 50 CFR part

22 are intended to have no retroactive effect directly or indirectly.

(E) The Service Administrative procedures for permit application,

issuance, revocation, denial, and appeal are set out in title 50 CFR

part 13. No additional Administrative procedures are anticipated for

exhaustion of remedies.

(F) All key terms have been defined within the CFR.

Author

The originator of this proposed rule is Law Enforcement

Specialist Paul McGowan, Division of Law Enforcement, U.S. Fish and

Wildlife Service. Washington, DC.

List of Subjects in 50 CFR Part 22

Exports, Imports, Reporting and recordkeeping requirements,

Transportation, Wildlife.

Regulation Promulgation

For the reasons set out in the preamble, title 50, chapter I,

subschapter B of the Code of Federal Regulations is proposed to be

amended as set forth below.

PART 22---[AMENDED]

1. The authority citation for part 22 continues to read as follows:

Authority: Sec. Eagle Protection Act of June 8, 1940, Chapter

278, 54 Stat. 251; Pub. L. 87-884, 76 Stat. 1246; sec 2, Pub. L. 92-

535, 86 Stat 1065; sec 9, Pub. L. 95-616, 92 Stat. 3114 (16 U.S.C.

668a).

2. Section 22.1 is revised to read as follows:

Sec. 22.1 Purposes of regulations.

The regulations contained in this Part govern the taking

possession, transportation within the United States of bald and golden

eagles for scientific, educational, depredation control purposes and

for the religious purposes of Indian tribes, and the transportation

into and out of the United States under permit of bald and golden

eagles for scientific, educational, and Indian religious purposes. The

import, export, purchase, sale, or barter of bald or golden eagles,

their parts, nests, or eggs is not permitted by any regulation of this

subchapter B.

3. Section 22.2 is amended by revising paragraph (a) to read as

follows:

Sec. 22.2 Scope of regulations.

(a) Bald eagles, alive or dead, or their parts, nests, or eggs

lawfully acquired prior to June 8, 1940, and golden eagles, alive or

dead, or their parts, nests, or eggs lawfully acquired prior to October

24, 1962, may be possessed, or transported within the United States

without a Federal permit, but may not be transported into or out of the

United States, imported, exported, purchased sold, traded, bartered, or

offered for purchase, sale, trade, or barter; and all shipments

containing such birds, parts, nests, or eggs must be marked as provided

by 16 U.S.C. 3372(b) and Sec. 14.81 of this chapter: Provided, That no

exemption from any statute or regulation shall accrue to any offspring

of such birds.

* * * * *

4. Section 22.3 is amended by adding in alphabetical order

definitions for ``export,'' ``import,'' and ``transportation into and

out of the United States'' to read as follows:

Sec. 22.3 Definitions.

* * * * *

Export for the purpose of this Part does not include the

transportation out of the United States pursuant to a valid

transportation permit.

* * * * *

Import for the purpose of this Part does not include the

transportation of eagle parts into the United States pursuant to a

valid transportation permit.

* * * * *

Transportation into or out of the United States means that the item

or items being transported into or out of the United States do not

change ownership at any time, they are not transferred from one person

to another in the pursuit of gain or profit, and are being transported

into or out of the United States for Indian religious purposes, or

scientific or exhibition purposes.

Sec. 22.11 [Amended]

5. Section 22.11 is amended by removing the term

``(Aquilachrysaetos)'' and adding in its place ``(Aquila chrysaetos)''

every where it appears.

6. Section 22.12 is revised to read as follows:

Sec. 22.12 General restrictions.

No person shall sell, purchase, barter, trade or offer for sale,

purchase, barter or trade, export or import, at any time or in any

manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle

Aquila chrysaetos), or the parts, nests , or eggs of such birds, and no

permit will be issued to authorize such acts. Permits may be issued

pursuant to the provision of this part and parts 13, 17, 21 and 23 of

this chapter, however, to allow the transportation into and out of the

United States of lawfully possessed parts, nests or eggs of such birds

for Indian religious purposes, or for scientific or exhibition

purposes, subject to the conditions of the permit.

7. Section 22.21 is amended by revising the introductory text to

the Section, paragraph (a) introductory text, paragraph (b), and

paragraph (c) introductory text, to read as follows:

Sec. 22.21 Permits for scientific or exhibition purposes.

The Director may, upon receipt of an application and in accordance

with the issuance criteria of this Section, issue a permit authorizing

taking, possession, transportation within the United States, or

transportation into and out of the United States of bald eagles or

golden eagles, or their parts, nests, or eggs for the scientific or

exhibition purposes of public museums, public scientific societies, or

public zoological parks.

(a) Application procedure. Applications for permits to take,

possess, transport within the United States, or transport into and out

of the United States bald or golden eagles, their parts, nets or eggs

for scientific or exhibition purposes shall be submitted to the

appropriate Assistant Regional Director--Law Enforcement (See:

Sec. 13.11(b) of this chapter). Each such application must contain the

general information and certification required by Sec. 13.12(a) of this

chapter plus the following information:

* * * * *

(b) Additional permit conditions. In addition to the general

conditions set forth in Part 13 of this chapter, permits to take,

possess, transport within the United States, or transport into and out

of the United States bald or golden eagles for scientific or exhibition

purposes, shall be subject to the following condition: In addition to

any reporting requirement set forth in the permit, the permittee shall

submit a report of activities conducted under the permit to the

Assistant Regional Director--Law Enforcement within 30 days after

expiration of the permit.

(c) Issuance criteria. The Director shall conduct an investigation

and not issue a permit to take, possess, transport within the United

States, or transport into and out of the United States bald or golden

eagles for scientific or exhibition purposes unless he has determined

that such taking, possession, or transportation is compatible with the

preservation of the bald or golden eagle. In making such determination,

the Director shall consider, among other criteria, the following:

* * * * *

8. Section 22.22 is amended by revising the introductory text to

the Section, paragraph (a) introductory text, paragraph (a)(5),

paragraph (b) introductory text, paragraph (b)(2), paragraph (c)

introductory text and paragraph (d) to read as follows:

Sec. 22.22 Permits for Indian religious purposes.

The Director may, upon receipt of an application and in accordance

with the issuance criteria of this Section, issue a permit authorizing

the taking, possession, transportation within the United States, and

transportation into and out of the United States, of bald or golden

eagles, or their parts, nets, or eggs for the religious use of Indians.

(a) Application procedure. Applications for permits to take,

possess, transport within the United States, and transport into and out

of the United States bald or golden eagles, their parts, nests, or eggs

for the religious use of Indians shall be submitted to the appropriate

Assistant Regional Director--Law Enforcement (See: Sec. 13.11(b) of

this chapter). Only applications from individual Indians will be

accepted. Each such application must contain the general information

and certification required by Sec. 13.12(b) of this chapter plus the

following additional information:

* * * * *

(5) Applicant must attach a certificate from the Bureau of Indian

Affairs that the applicant is a member of an Indian tribe listed in the

Federal Register notice published in accordance with 25 CFR 83.6(b).

* * * * *

(b) Additional permit conditions. In addition to the general

conditions set forth in part 13 of this chapter, permits to take,

possess, transport within the United States, and transport into and out

of the United States bald or golden eagles, their parts, nests or eggs,

for the religious use of Indians shall be subject to the following

conditions:

* * * * *

(2) Permittees shall make such reports or submit inventories of

eagle feathers or parts on hand as may be requested by the Assistant

Regional Director--Law Enforcement.

(c) Issuance criteria. The Director shall conduct an investigation

and not issue a permit to take, possess, and transport within the

United States, and transport into and out of the United States bald or

golden eagles, their parts, nests or eggs, for the religious use of

Indians unless he has determined that such taking, possession, and

transportation is compatible with the preservation of the bald or

golden eagle. In making such determination, the Director shall

consider, among other criteria, the following:

* * * * *

(d) Tenure of permits. Any permit issued pursuant to this Section

under which the applicant is authorized to take eagles shall be valid

during the period specified on the face thereof, which shall in no case

be longer than 1 year from the date of issue. Any permit issued

pursuant to this Part which authorizes the permittee to transport

within the United States and possess eagles or their parts shall be

valid for the life of the permittee unless sooner revoked. Any permit

issued pursuant to this Part which authorizes the permittee to

transport into or out of the United States eagle parts shall be valid

for a period of 30 days or the date designated on the face of the

permit unless amended or revoked.

9. Section 22.23 is amended by revising paragraph (a) introductory

text, and paragraph (b)(4) to read as follows:

Sec. 22.23 Permits to take depredating eagles.

* * * * *

(a) Application procedure. Applications for permits to take

depredating bald or golden eagles shall be submitted to the appropriate

Assistant Regional Director--Law Enforcement (See Sec. 13.11(b) of this

chapter). Each such application must contain the general information

and certification required by Sec. 13.12(a) of this chapter plus the

following additional information:

* * * * *

(b) * * *

(4) In addition to any reporting requirement set forth in the

permit, the permittee shall submit a report of activities conducted

under the permit to the Assistant Regional Director--Law Enforcement

within 10 days following completion of the taking operations or the

expiration of the permit whichever occurs first.

* * * * *

10. Section 22.25 is amended by revising paragraph (a) introductory

text to read as follows:

Sec. 22.25 Permits to take golden eagle nests.

* * * * *

(a) Application procedure. Applications for permits to take golden

eagle nests must be submitted to the appropriate Assistant Regional

Director--Law Enforcement (see Sec. 13.11(b) of this chapter)

Applications are only accepted from persons engaged in a resource

development or recovery operation, including the planning and

permitting stages of an operation. Each application must contain the

general information and certification required by Sec. 13.12(a) of this

chapter plus the following additional information:

* * * * *

Dated: May 9, 1994.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-14597 Filed 6-15-94; 8:45 am]

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